WEST PALM BEACH (CN) - Delray Beach claims it can fire a cop for using his badge to get free ice cream, and lying to investigators about it, despite an arbitrator's decision to reinstate the man.
The city claims the city manager had "sufficient evidence" to fire Officer Michael Brown, and that the arbitrator's demand that the city have "all the evidence" before acting is "an impossible standard for any party to meet."
The city manager fired Brown in November 2009, after finding that "Brown was untruthful during an internal affairs investigation," and that "Brown used his official position with the City to obtain free ice cream in violation of Department policies regarding unethical influence."
Under the collective bargaining agreement between Delray Beach and the defendant Palm Beach County Police Benevolent Association, the city manager has the right to fire employees for "just cause," the city says.
Brown and the Police Benevolent Association appealed his firing, and the arbitrator reinstated him, without back pay and with loss of seniority since his termination.
The net result was that Brown was effectively suspended without pay for about 8 months, and would be allowed to return to work during the next payroll period.
The crux of the case whether the city manager needed "all the evidence," or whether "sufficient evidence" was enough.
"The arbitrator apparently concludes that the City has not met this criteria based on his opinion that 'the city did not have all the evidence needed, and misinterpreted evidence it did have," the complaint states. (Italics in complaint.)
But the city insists: "The contract does not require the City to have 'all the evidence' in order to dismiss an employee. Requiring 'all the evidence' would be an impossible standard for any party to meet. Even in criminal cases, the State is not required to have all the evidence in order to obtain a conviction."
The city claims the arbitrator exceeded his power by substituting his judgment about the severity of Brown's action for the judgment of the city manager, and changing the penalty. The city says the arbitrator can do that only if the city is found to have violated the collective bargaining agreement - which it says it did not.
The city wants the arbitrator's decision vacated, and Brown's firing affirmed, in Palm Beach County Court.
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